Editor's Note :

We expect one or more decisions in argued cases on Wednesday at 10 a.m. We will begin live-blogging at approximately 9:45 The Court also has confirmed that the audiotape of Wednesday’s hearing in King v. Burwell will not be released on that day, but on Friday, as is usual.Wednesday's live blog will be available here.

Detainees and math theory: A legal test

Posted Mon, December 13th, 2010 7:16 pm by Lyle Denniston

Reacting to the first of the new wave of Guantanamo Bay detainees’ appeals, the Justice Department on Monday endorsed — as a routine exercise in legal logic — a federal appeals court’s use of a mathematical theory that gives added weight to government evidence seeking to justify continued captivity for foreign nationals. The concept has been attacked in an appeal by a Yemeni national, Mohammed Al-Adahi (Al-Adahi v. Obama, docket 10-487), whose lawyers contend that the D.C.Circuit Court has lowered the proof required for detention by the U.S. military. (His petition is here; the newly filed U.S. opposition brief is here.)

Al-Adahi’s case is the first of eight new detainees’ cases that have reached the Court more than two years after the Justices gave those at Guantanamo a constitutional right to challenge in a federal court their imprisonment as terrorism suspects. In cases involving 38 detainees, federal District Court judges have found the detention was not legally justified, but the Obama Administration has been testing a number of those rulings in the Circuit Court, Al-Adahi’s among them.

What makes his case somewhat unusual was the lecture that the Circuit Court gave to District judges about how they are to weigh the evidence that the Pentagon and U.S. intelligence agencies submit to try to counter the detention challenges of the Guantanamo captives. The judges, the Circuit Court panel said, should be applying the theory of “conditional probability.” In short, each assertion is to be considered, not for what it says by itself, but how it might make the next assertion seem more solid, and so on, so that the overall weight adds up to enough to support detention.

That lecture is at the heart of Al-Adahi’s petition in the Supreme Court. His lawyers contended that the Circuit Court borrowed that approach from a mathematician, and sought to turn it into a legal standard that actually requires the government to do no more than offer “probable cause” that something might be true, which is said to be a lower standard than even the minimal requirement that detention be proved by “a preponderance of the evidence.”

Using that “probabilities” approach, Al-Adahi’s counsel argued, allowed the Circuit Court to substitute its own independent view of the assertions in the case, taking over a role that supposedly belonged to the District Court as the trial court.

The Justice Department, countering on Monday, said the theory is “not a novel legal standard,” but rather is “a commonplace element of sound legal reasoning” and “a principle of reasoning that is consistent with this Court’s decisions.” The Circuit Court has emphasized, the brief said, that its goal is to see that the evidence in habeas cases “should not be ‘unduly atomized.’ ”

In Al-Adahi’s petition to the Justices, his lawyers had argued that the Circuit Court took six or seven facts, each of which could have an innocent explanation, and strung them together to support the finding of a link to the Al-Qaida terrorist network.

Responding, the Justice Department said that the District judge gave too little weight to the government’s evidence that Al-Adahi had close social ties to Osama bin Laden, the top leader of Al-Qaida, that he had taken weapons training at an Al-Qaida camp, and had stayed in Al-Qaida “guesthouses.” The Circuit Court did not just “string together” such assertions, the brief went on, but actually weighed them together and as a whole, ultimately justifying the conclusion that Al-Adahi “was part of Al-Qaida.”

“The court of appeals recognized that it would be inherently highly improbable for all of those facts to be true of an individual who was not part of al-Qaida,” the Department brief summed up. The brief also said that, beyond what is publicly known about the government’s evidence, there was a classified filing that contributed to the rationale for continuing to hold Al-Adahi. His petition should be denied, the Department argued.

The detainee’s lawyers will get a chance to reply before the Justices decide whether to hear his appeal.

(NOTE: The Department’s new brief was signed by others in the Solicitor General’s office, noting that Acting SG Neal K. Katyal “is recused in this case.” There was no explanation, but before joining the government, Katyal was a volunteer lawyer for a detainee at Guantanamo.)

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. In case there are opinions, we will be live blogging both Tuesday and Wednesday. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]